Part 18 Gladstones/Millennium Swansea

System

Copper Quarter?

See http://forums.pepipoo.com/index.php?showtopic=110213&view=findpost&p=1292026

LucyBea

Hi IamEmanresu,
No it wasn't Copper Quarter... I'm yet to even see the parking contract.
Thank you for the links to other current cases though, it's very helpful :-)

Loadsofchildren123

LucyBea wrote: »

Thanks Redx and Umkomaas I agree it's not a strong point as the signs are tiny, so I have amended my defence accordingly.

I would be incredibly grateful for feedback on my defence. I really wanted to keep it short but It's ended up quite long so I'll post it in a few segments. LoadsofChildren's case was somewhat similar and she did such an incredible job I have used a lot of that. Thank you so much LoadsofChildren for all the hard work!

In the County Court
Claim Number: XXX
Between Millennium Door and Event Security LTD and XXX

Defence Statement

Preliminary Matters
1. Although it has not been established that the Claimant, Millennium Door and Event Security, has a legal capacity to bring claims for the on behalf of Millennium Parking Services, for the purpose of this defence we will refer to both bodies entities are referred to herein as “the Claimant.”

2. The Defendant invites the court to strike out this claim pursuant to its inherent powers in CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1for (1) having no cause against the Defendant, the registered keeper of the vehicle, (2) failing to comply with the Civil Procedure Rules (CPR) and (3) having no prospect of success.



insert para:
The Defendant admits that he is the registered keeper of the vehicle registration xxxxx but denies that he was driving it at the relevant time.

2. (1) The driver has not been identified by the Defendant and the Claimant has produced no evidence to show that he was driving the vehicle at the relevant time.


[new sub para] The only liability which the Defendant can have is therefore as registered keeper of the vehicle. The Defendant denies that he has any liability as registered keeper. Although there is a provision in law under he admits that Schedule 4 of the Protection of Freedoms Act of 2012 ("the Act") provides that a parking company can recover unpaid parking charges from the vehicle’s keeper, however the Claimant cannot rely on the Act because it the Claimant did not comply with its requirements of Act at all, most notably, it they failed to deliver any notice to keeper within the relevant period required by the Act. (Protection of Freedoms Act 2012, Schedule 4, paragraph 8, subparagraphs (4) and (5): that the notice must be delivered in the “period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given” (56 days). In this case the alleged parking event took place XX/X/2015 and a “Notice to Owner” sent by different entity, “Parking Collection Services” was dated XX/XX/2015, a period of 77 days.) As such, the Defendant has no liability in law.

2. (2a) The Particulars of Claim disclose no cause of action and are in breach of several aspects of Civil Procedure Rules (CPR), so much so that they are incoherent, containing no details about the Claim, how it arises or to what it relates. The Defendant has requested the Claimant’s solicitor to comply with the Practice Direction on Pre-action Conduct and Protocols as per paragraphs 6(a) and (c) and provide basic details on four separate occasions in prompt response to their ultimatums to pay the charge now claimed. The Defendant has also requested ADR as per paragraph 8. The Claimant’s solicitor has not replied and has instead proceeded directly to court proceedings the small claims court. The Defendant draws the court's attention of the court to paragraphs 15 and 16 of the Practice Direction regarding non-compliance and sanctions. Moreover, a Claim must be set out in full in the Particulars of Claim, a clear requirement of Rule 16.2(1)(a), 16.4(1)(a)). Proper The Particulars of Claim have now been requested in a formal Part 18 request; no reply has yet been made.

2. (2b) The Claimant’s solicitors are known for proceeding to court with generic claims with no scrutiny of details or even confirming a true cause of action. The Defendant understands that they are currently under investigation by the Solicitors Regulation Authority. The Defendant thus believes the Claimant and its their solicitors are showing disregard for the dignity of the court and using small claims in order to extract money from panicked and busy unrepresented consumers without the time or know-how to formulate a defence, using an automated system which is against the public interest. HMCTS has identified over 1000 similar poorly produced claims (evidence for this? - I agree, take it out) and t There are many examples of similarly poorly pleaded claims being struck out. District Judge Anson of Preston County Court struck out with no hearing a case brought by Gladstones on behalf of Parking Control Management on 20/9/2016 as “the particulars of claim are incoherent, do not set out the facts, give rise to no apparent claim in law, fail to comply with CPR 16.4…” District Judge Musgrave of Birmingham County Court struck out another Gladstones claim 19/1/2017 for being “utterly hopeless and inadequate” and “an abuse of process.” One of their solicitors have been quoted as saying “We issue on a vast majority of claims, majority of which are not defended and therefore it is time consuming and not financially viable to send further particulars of claim.” The Defendant asserts that financial viability is not an excuse for court rules to be ignored.

2. (2c) The Claimant has not in fact provided any facts or evidence to enable the Defendant to file a proper defence, meaning the Defendant has had to cover all possible defences, causing significant distress and taking a considerable amount of time. The Defendant has reason to believe that this claim will proceed without and facts or evidence supplied until the last possible minute, a significant disadvantage to the unrepresented Defendant, who has no legal experience. It is submitted that the conduct of the Claimant and the Claimant’s solicitors is wholly unreasonable and vexatious. A punitive costs order will be sought against the Claimant and a wasted costs order against its solicitors.

2. (3) The Claimant was not a party to any contract, and any contract that may exist is therefore unenforceable. There is nothing whatsoever reasonable about this Claim: the Defendant believes it to be a tactic to extract a sum of money to which it has absolutely no legal right.

Making a start on this for you - anything unclear about the above let me know

LucyBea

Amazing LoadsofChildren123 - you are a wizard with words!
I am really pleased with those edits, thank you so much.
:T

Loadsofchildren123

I worked on the next bit but it wouldn't post and I had to leave work. Will post first thing tomorrow.

LucyBea

Can't thank you enough...

Loadsofchildren123

Doing this in sections, I'm having difficulty posting anything at all. The paragraph numbering will need to be redone.

1. I, XXX XXX, am the Defendant in this matter. I denies that she was driving the vehicle registration xxxx on xx/x/2015, but admits that was the authorised registered keeper of the vehicle on that date registration XXXXXX on XX/X/2015.The Defendant denies I deny liability for the entirety of the claim on the following grounds:

i. the Claimant has no locus standi to bring the claim;

ii. the Defendant was not driving
iii. the Defendant cannot be held liable as the registered keeper;

iv. even if the Defendant were found to be the driver or liable as registered keeper, in any event there can be no liability because no contract was formed between driver and the Claimant.



2. The Defendant also denies I deny that the Claimant can have incurred £50 of solicitors’ costs or that these are recoverable.

2. The Defendant believes that As this Claim is likely to be[/a] a generic “roboclaim” and is in difficulties in understanding the claim being brought against heras previously discussed,: she Defendant is therein described as “driver and/or keeper.” As POFA requirements were not met and no attempt at a compliant Notice to Keeper was sent as per the Act. The Defendant can but assume the Claimant will make its case based on (1) their an incorrect assertion that “the keeper is assumed to be the driver unless proved otherwise” and incorrectly relying on a misrepresentation of the findings in use the criminal case Elliott v Loake 1983 Crim LR 36 to argue this point and (2) an incorrect assertion that the driver entered into a contract with the Claimant- although the Particulars of Claim do not mention a contract, instead referring to the driver “breaching the terms of the parking on the land;” however with no more specific particulars details, and as only a landowner can claim damages for trespass, the Defendant can but assume the Claimant will make its case by asserting (2) the driver entered into a contract with the Claimant, which the Defendant also denies.

3. The Defendant believes that the Claimant will attempt to remedy its defective Particulars of Claim, and circumvent the requirements of CPR Rule 17.1(2) (and the requirements of paragraph 6(a) and (c) of the Practice Direction – Pre-Action Conduct) by providing particulars of its claim and supporting evidence in its witness evidence. Should this occur, the Defendant specifically reserves the right to add to/amend this my defence to address any new matters raised if the particulars are at some stage brought forward and show otherwise. Again, it is denied that the driver had any contract, and that even if they did, that the keeper has any responsibility for contracts the driver may or may have not made.

 
LEGALITY OF CLAIM

Claimant’s rights to bring a Claim Locus Standi

4. The Defendant denies that the Claimant has locus standi to bring this Claim, on the following basis:

4.1 The Defendant puts the Claimant to full proof that it No evidence has been provided that the Claimant has any proprietory sufficient interest in the land at XXX, Swansea, nor that there is an agreement between it and from the landowner granting it the any rights whatsoever to the Claimant, nor that there any terms within this agreement which entitle the Claimant to attempt to levy any parking charges or to , nor or that the Claimant has rights to bring pursue a claim on its own behalf. The Claimant is put to full proof of this.

4.2 No evidence has been provided that the Claimant has locus standi to bring this claim: it was not identified on the signage, nor the notice to driver, or the Notice to Keeper [check this – I think my NtK did id MDES not MPS], and the Defendant has reason to believe that it is not named in puts it to full proof that it was a party to any the parking contract with the landowner and the terms of that contract, and that it was a party to any contract that it claims was formed with the driver.

4.3 It was No evidence has been provided that “Millennium Parking Services” (“MPS"), and not the Claimant, which was identified in the signage and the Notice to Driver, which was held out as an entity in its own right and which the Defendant believes entered into any contract with the landowner. The Defendant denies that MPS has any legal personality and it is therefore incapable of entering into any contract, either with the landowner or with a driver.

5. Once the Claimant produces a valid contract between it and the As no landowner contract has been provided the Defendant is unable will be able properly to assess the contractual right of the Claimant to issue any charge to the said vehicle or to pursue these proceedings and The Defendant reserves the right address this further in court as she has reason to believe the Claimant's parking contract did not authorise them to issue a parking charge notice in the first place

Loadsofchildren123

Claimant’s breaches of legislation

6. Pursuant to the doctrine of ex dolo malo non oritor actio, the Claimant cannot rely on illegal or immoral acts to bring a claim, nor can it in order seek to profit from them. [I’ve moved this para up]:

6.18. No evidence has been provided that the signs themselves meet the requirements of planning law; [It’s better to know the position rather than expect them to evidence it – go onto Swansea’s planning portal, you need to post code of the place, then do a planning application search, putting in the postcode will give you a list of every application that has been made and its status – if no application make an online complaint, the council will investigate immediately – in my case they did so and the signs came down within a week, although that may have been a coincidence – assuming no application: The Claimant and/or MPS has not applied for or obtained failing to apply for advertisement or planning consent for the signage it has installed on the relevant land, which is a criminal offence pursuant to Regulation 27 of The Town and Country Planning (Control of Advertisements) Regulations 1992



6.2 The Claimant is in breach of Consumer Rights legislation, including but not limited to breaches of the Consumer Rights Act 2015 which requires transparency (s.68) and which prohibit defines unfair terms (s.62) which include charging regarding disproportionate sums

6.39. the Claimant (and/or MPS) Millennium Parking Services has breached many aspects of the British Parking Association’s Code of Practice, compliance with which is mandatory for members, and in Parking Eye Limited v Beavis 2015 UKSC 67, on which the Claimant’s solicitor will no doubt intend to rely, it was held that compliance with the Code of Practice is paramount to the enforceability of any contract/contractual charges. [was it a member of bpa??? It changed to IPC in Nov ’15 – check the IPC website, it gives the joining date.]

11. The Claimant is attempting to recover an unjustifiable inflated sum, breaching the Protection of Freedoms Act 2012 [is this part of the Act?]



LIABILITY AS DRIVER

13. The Claimant has asserted that the Defendant, for the sole reason that she is as keeper of the vehicle, must be is presumed to be the driver unless she proves otherwise, and it relies on and claims that Elliott v Loake 1983 Crim LR 36 in support of that assertion sets a precedent for this. The Defendant believes that the Claimant and/or its Gladstones solicitors are attempting to deliberately mislead vehicle owners (and the court) in citing this case because they know or must know that this assessment of the case is entirely wrong.

14. In fact, Elliott v Loake This case does not provide that for any such presumption can or should to be made, nor that it is for the Defendant to rebut it. This claim, like any other, is for the Claimant to prove. and tThere is nothing unique about parking charges which reverses the burden of proof in respect to parking charges.


15. In Elliott v Loake is distinguished: in that case there was irrefutable forensic and witness evidence that the registered keeper was drivingof the driver’s identity including forensic evidencewhich is entirely absent in this case, and its relevance criminal case has been dismissed by other courts Judges in similar cases brought by the Claimant’s Gladstones Solicitors. (evidence for this? See Parking Prankster blog, and Lamilad’s threads – he has made his transcript is available, it’s Excel v Lamoreux but I might have spelt that wrongly – take care here because I think the Excel cases are not Gladstones but BW Legal, if you can't find at least two examples you may have to say “brought by other parking companies”)



16. Parking on Private Lands Appeal (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, has stated publicly clarified that: “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.” (POPLA annual review 2015)

14. The Claimant may assert that the driver was acting as the keeper’s agent and rely on the case of CPS v AJH Films [2015] EWCA Civ 1453. The latter case is distinguished from this claim: in it the driver was the keeper’s employee and therefore acting on its behalf in the course of his employment. The proposition that the case has any relevance is denied: if this were correct then it would follow that:


14.1 The introduction of keeper liability pursuant to Schedule 4 of the Protection of Freedoms Act would have been unnecessary and redundant
14.2 If true, a keeper could then be held accountable for all unlawful acts committed by a driver while in possession of the vehicle (clearly a which isnonsense)
14.3 This would render The entire car hire business would become unfeasible if hirers were deemed liable for the actions of drivers (and a private arrangement where a keeper lends his/her vehicle to a third party can be treated no differently)


The applicability of the CPS case to a scenario such as this was dismissed by HHJ Smith sitting at Stockport in an appeal on 8 June 2017 (case number M17X062, Excel Parking Services v Smith).


15.The Defendant has no liability as driver of the vehicle (whether or not a valid contract was formed between the Claimant and/or MPS and the driver – which, for the avoidance of doubt, is any event it is denied that there was any such contract).
1.

Loadsofchildren123

LIABILITY AS KEEPER[ I’ve moved this section up]

16. The Defendant denies that she is liable for the amount claimed as the registered keeper of the vehicle.

17. The Defendant admits recognises that there is a provision in law under Schedule 4 of the Protection of Freedoms Act of 2012 to recover unpaid parking charges from a the vehicle’s keeper, but denies that such liability has transferred to her under the provisions of the Act.


18. For such liability to transfer from driver to keeper, if all the conditions set out in paragraphs 5, 6, 11 and 12 of Schedule 4 must first be are met. The Defendant denies that some or all of those conditions have not been met, as set out below, and so the Claimant cannot rely on Schedule 4 of the Act and the Defendant cannot, as registered keeper, be held liable for the charges claimed:

18.1 Paragraph 5(1)(a): the Claimant must have the right to enforce the charge against the driver, which the Defendant denies on the basis that no contract can have been formed between the Claimant and/or MPS and the driver (these matters are dealt with at paragraphs x-x below insert para numbers of the no-contract section).

18.2: Paragraph 6(1)(a): a Notice to Driver must have been given in accordance with paragraph 7 (and the Defendant denies that the Notice to Driver in this case complies with paragraph 7) and a Notice to Keeper must have been served in accordance with paragraph 8 (and the Defendant denies that the Notice to Keeper complies with paragraph 8, primarily because it was sent to the Defendant 77 days after the parking event, whereas it should have been sent and received between day 28 and day 56 after the parking event - there are also other aspects in which it fails to comply with paragraph 8).


18.3 Paragraph 11(1)(a) and (b): the Defendant puts the Claimant to full proof of its compliance with this condition.


18.4 Paragraph 12: in the absence of regulations by the Secretary of State, the Claimant should have complied with the Code of Practice of its Accredited Trade Organisation (in this case the BPA, or is the IPC?), because compliance is mandatory and is a condition of such membership.

18. As the Claimant did not comply with the requirements of this Act at all, and no valid “Notice to Keeper” was ever sent from the Claimant, nor Millennium Parking Services, thus there is no legal basis for the keeper to be held accountable under this Act.

Loadsofchildren123

LIABILITY PURSUANT TO AN ALLEGED CONTRACT

16. The Defendant denies It is denied that the driver entered into a contract with the Claimant and/or MPS (, Millennium Door and Event LTD, or with Millennium Parking Services, whose name appears on the inconspicuous signage at the site).

17. Any contract can only have been created where there is an offer, acceptance and consideration.


18. In the case of parking on private land, where the offeror is not present, such offer can only have been made in writing, on signage which it follows must be conspicuously displayed and which must contain legible wording capable of making an offer. In breach of Practice Direction 16 paragraph 7.3 the Claimant has not produced a copy of the signage upon which (the Defendant assumes) it relies as having made a contractual offer

19. The Defendant denies that any offer was made because the signage was not properly or conspicuously displayed, and its wording was incapable of making any offer because it not clear and unambiguous and was forbidding.


19.1 A driver cannot accept a contract which is being offered unless he knows, or ought to have known, its terms. It is not the driver’s The responsibility to look for signage which might offer contractual terms. It is does not lie with the driver to look for it, but for the Claimant’s responsibility to ensure that such signage/contractual terms were was so obvious enough forthat any reasonable driver to would have seen it/them, to have understood from the wording that an offer was being made, to havebeen able to have read and to have understood understand the terms being offered. , and; A driver cannot accept consent to and then breach an unknown a contract that he does not know, and cannot reasonably know, has been offered.


19.1 On the day of the alleged incident, there was no warning sign at the entrance to the land referring to terms and conditions for parking (a further mandatory requirement of the COLOR=seagreen]BPA/IPC CoP[/COLOR) and the signage on the land was obscured by overgrown and unkempt foliage which would have made it impossible for the driver to have noticed it and read it.


19.2. The wording on the obscured signage was not Terms offered must be clear and unambiguous. The signage displayed was in fact too small for a the driver to even notice, and it was cluttered and contained wording in small font which was illegible
18.2. On the day of the alleged incident the signage was obscured by overgrown and unkempt foliage


20. Alternatively, if the signage was capable of making does make an offer:-
20.1 the only offer it can have made was for permit holders, or for “short stay parking” with no legible definition specifics as to how long a period this allowed. Otherwise, the wording on the signage was forbidding and not capable of making any offer, because it forbade parking on any other terms rather than offering it in return for a fee. Its aims is to deter unauthorized parking by attempting to enforce a penalty, . This is contrary to the Consumer Rights Act 2015
20.2 The Claimant has produced No evidence, and the Defendant denies, has been provided that the driver breached such terms that may have been offered the terms on the inconspicuous signage: the vehicle was photographed at 11:07 and 11:16 on the day in question, is the “short stay parking" the Claimant alleges to offer for less than 9 minutes?
(NOTE – the notice to driver says time issued 11:15, observed 11:04 to 11:14, I am merely saying there is no evidence of this…)
20.3 The signage did not identify the Claimant, but only MPS and so no offer can have been made by the Claimant.
18.4. There was no warning sign at the entrance to the land referring to terms and conditions, a further mandatory requirement


18. It is notable that the signage (its positioning, size and wording and the absence of entrance signage) It is also in breach of the specific and mandatory requirements of the British Parking Association Code of Practice[is this the right CoP)? to which Millennium Parking Services the Claimant and/or MPS was required to adhere at the time of this alleged incident



20. MPS and/or the Claimant’s Millennium Parking Service’s intention was not to offer a genuine contract to park. The wording on the (obscured) signage is forbidding: “warning private property 24 hour car park management permit holders and short stay only,” and aims to deter unauthorized parking by attempting to enforce a penalty. This is contrary to the Consumer Rights Act of 2015


21. It follows that if an offer was not made, either because the signage made no offer or because any offer was not adequately communicated to the driver, then the driver cannot have accepted the terms offered. In the alternative, if any offer was made then the driver complied with its terms by remaining parked for only a "short" period.


22. There is a long precedent of very similar cases dismissed due to poor signage on which the Defendant will rely

23. The Claimant’s solicitors may attempt to use Parking Eye Limited v Beavis 2015 UKSC 67. The Defendant maintains that this case in fact supports her defence and intends to rely on use it:
23.1. This case was not based on breach of contract, and In Beavis the Defendant accepted that there was a contract formed by the clear and prominently displayed signage.
23.2. The Claimant had complied with the Code of Practice of the British Parking Association; this case it was held that strict compliance with the code of practice is expected of a Claimant seeking to enforce a parking charge
23.3 The relevant land was a retail park in which there was a genuine interest in preventing overstays and ensuring a turnover of customers.



24. The parking charges sought are not a genuine pre-estimate of loss, but an extravagant penalty, and therefore unenforceable. In the Beavis case, the Supreme Court was only prepared to accept a charge of £85 sufficient to act as a disincentive. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield). The charge of £125 to the Defendant is clearly extravagant and disproportionate to the Claimant’s interest and in fact comprises non-contractual elements I've moved this para



24. The Claimant has produced No evidence has been provided that the driver breached such terms that may have been offered the terms on the inconspicuous signage: the vehicle was photographed at 11:07 and 11:16 on the day in question, is the “short stay parking" the Claimant alleges to offer for less than 9 minutes?
(NOTE – the notice to driver says time issued 11:15, observed 11:04 to 11:14, I am merely saying there is no evidence of this…) I've moved this above